A couple of days ago I said it would make no difference.
After all of the sound and fury signifying nothing, Brett Kavanaugh was approved 50 – 48 with one Republican woman abstaining, one Republican male attending his daughter’s wedding and one Democrat voting Aye. It was a sad spectacle indeed.
Alaska Senator Lisa Murkowski, a lone sane voice among the GOP had her vote recorded as “present” – she would not vote for Brett Kavanaugh.
Susan Collins, on the other hand went on the floor of the Senate with an hours long self-aggrandizing speech on why she was voting for the nominee proving that the best way to get what you want in the world is by lying shamelessly. Her reputation now in tatters, some $500,000 was raised for a fund to finance her defeat during her speech. The fund reached $3 million by this morning.
Jeff Flake, the retiring Arizona Senator had asked for an FBI investigation into allegations against Kavanaugh. But apparently he wasn’t interested in the truth of the allegations.
He wanted cover to vote “yes” because it is clear to me he plans to run for President and will probably enter a primary against Trump in 2020. He is heading for New Hampshire in two weeks. The faux investigation also gave cover to Collins and the Democrat Joe Manchin of West Virginia.
Let us take a moment to appreciate the full scale of Flake’s cowardice. He has sucked up 100 times the media oxygen of his fellow moderate Lisa Murkowski, giving speeches on the Senate floor, penning a vanity book and then not once lifting his finger to actually stop what Trump and his allies are doing to the country. With his time in the Senate coming to an end, Flake hasn’t cast a single significant vote against the Trump agenda. Instead he seems to enjoy the reputation of a maverick without actually being one, a title Murkowski alone can now genuinely claim among elected national Republicans.
Joe Manchin was particularly odious on this vote – he was prepared to vote with the majority, which ever side. Collins coming out in support insured that he was not going to be the deer in the headlights. The GOP was going to win so he voted with them. If Collins had voted no, he would have voted with his party.
All certainly profiles in courage. They have placed a partisan warrior on the Court who will taint every 5-4 decision for years to come with the stench of his confirmation.
Murkowski alone expressed concern about the credibility and integrity of our institutions. She was right.
Judge Andrlew Napolitano, a libertarian and Bush appointee recently said:
“The Supreme Court should not be political. It is the anti-democratic branch of government. Its constitutional obligation is not to do the people’s will but to preserve personal liberty from the tyranny of the majority.”
When I was a younger man I viewed the Court as the last bastion of liberty; that indeed it was the Court which would defend individual liberty from the tyranny of a majority.
But it was not always so.
There was Dred Scott in 1857. Chief Justice Roger Taney authored this opinion— one of the most important and scorned in the nation’s history. Dred Scott, a slave, had moved with his master to Illinois, a free state. He moved again to a slave state, Missouri, and filed suit to gain freedom, under that state’s law of “Once free, always free.” Taney held that Scott had never been free at all, and cited Constitutional grounds for placing the slavery decision in the hands of the states. In trying to put an end to the slavery controversy, Taney instead sped the nation toward civil war. The decision was later overturned by the Thirteenth Amendment. Taney went further stating that blacks were not and could not be citizens and were entitled to none of the protections and rights of citizenship.
Plessy v. Ferguson in 1896 affirmed the legality of Jim Crow laws so long as the state provided “separate but equal” facilities. Of course they were always separate and never equal.
In Schenck v. the United States during World War I (1918), Charles Schenck was the general secretary of the Socialist Party, and was arrested and convicted for distributing literature discouraging young men from enlisting in the armed forces. It was considered by the Court as an act which brought “clear and present danger” to the nation.
But then came Brown v. Board of Education striking down segregation in schools and the beginning of the end of Jim Crow. Ten years later came the Civil Rights Act. Mapp v. Ohio made it illegal for the state to use evidence against a defendant which was obtained illegally, mandating the use of search warrants. Baker v. Carr mandated that Congressional districts could not be drawn to violate the 14th amendment of equal protection – one man, one vote. Engel v. Vitale mandated that a school district could not require prayer in schools. Gideon v. Wainwright gave defendants an absolute right to counsel in 1962. Griswold v. Connecticut gave couples access to contraception. Prior to this case even married couples couldn’t buy a condom in Connecticut. Miranda v. Arizona brought us the Miranda warning ‘ “You have a right to remain silent.”
Roe v. Wade in 1974 gave women the right to choose. It is under attack more than ever.
United States v. Nixon – “Neither separation of powers, nor the need for confidentiality can sustain unqualified Presidential immunity from the judicial process.”
Lawrence v. Texas struck down sodomy laws (enforced only against homosexuals) and eventually brought about the legalization of same sex marriage.
But the table has been turned since 2010 as Citizens United v. Federal Election Commission gave corporations the right to spend unlimited amounts in elections – as if corporations were people. And Shelby County v. Holder gave states the right to change election laws without the Federal government’s approval. Both were 5 – 4 decisions as well as a recent decision against public sector unions.
And let us not forget Bush v. Gore but let us recall previous Senate votes on nominees.
Sandra Day O’Connor was appointed by Reagan and got 99 votes. Antonim Scalia, also a Reagan appointee was confirmed 98 – 0. Anthony M. Kennedy got 97 votes. Ruth Bader Ginsburg got 96. Stephen Breyer got 87 votes. There was a clear bi-partisanship for highly qualified nominees.
As the Court as become politicized the yea votes have fallen – Clarence Thomas was confirmed 52-48. Chief Justice John Roberts got 78. Sam Alito only 58 while Neil Gorsuch got only 52 votes.
Now we have a new low – a nominee confirmed with just 50 votes.
The damage to the credibility of the Court is clear for all to see.
And let us not forget – the Court is the most undemocratic institution of the Federal government. It’s members are appointed – not elected – and they are appointed for life. And their rule is law. Think of nine kings and queens.
Republicans had made it clear however that Kavanaugh was going to be confirmed – they had the votes – no matter the cost to the reputation of the Court or the Senate.
Six of the nine Justices are now Catholic or have a Catholic background. Two, Kavanaugh and Gorsuch went to the same elitist Jesuit high school, Georgetown Prep where apparently the young and entitled drank a lot of beer. While there has been only one Catholic President and they are a declining percentage of the population, male Catholics have a firm grip on the Court and will for decades to come.
The Court will soon be reviewing cases of district gerrymandering, LGBTQ employment rights, deportation of young adults brought here as children by their parents – not to mention abortion rights – in the future.
When Roe v. Wade is overturned I want you to remember Senator Susan Collins who cast the deciding vote to confirm Kavanaugh. And remember the other four Republican women Senators who voted for Kavanaugh – Cindy Hyde-Smith of Mississippi, Debbie Fischer of Nebraska, Joni Ernst of Iowa and Shelley Moore-Capito of West Virginia.
“I desire you would Remember the Ladies, and be more generous and favorable to them than your ancestors. Do not put such unlimited power into the hands of the Husbands. Remember all Men would be tyrants if they could. If particular care and attention is not paid to the Ladies we are determined to foment a Rebellion, and will not hold ourselves bound by any Laws in which we have no voice, or Representation”
Abigail Adams wrote that to John in 1776. Her words have never seemed more prescient than they do today.